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President, Precedent & Binding Precedent
So I'm sure some of you who listened to last weeks Mac Show were bothered that I repeatedly cut off Doc Rock when he and Bryan were talking about 'Precedent' in relation to the San Bernardino iPhone case.
In my defence, the term was being grossly misused and I was intent to see yet more confusion from poor legal knowledge confuse this issue even further.
So, here's a short explanation of the terms which were used in the show.
PRESIDENT
Largely arse kissing, bottom feeder who through who knows what mechanism raises themselves up to be a revered leader of an organisation or state. Alternatively, they gain control of the military and force their opinion on said organisation or state. Nothing to do with what we were talking about despite Doc thinking that's what Muller said.
PRECEDENT
An action, situation or decision that has already happened and can be used as a reason why a similar action or decision should be taken or made.
Be careful, this is a definition in English and not in Law and as such is only a guide for how other 'things' that have happened may influence human behaviour as to when those 'things' may recur.
'A District Attorney seeing that another DA has successfully challenged Apple may set a precedent'. Correct in the sense that the DA may see his own case being closely aligned with the first DA's and think that his is likely to win also. BUT...do not think for one second that gives a legal right or binds a judge, it doesn't. It merely enlarges the size of their Cojones (lady DAs included)
LEGALLY BINDING PRECEDENT
'Binding precedent means a precedent or an existing law that courts are bound to follow. For example, a lower court is bound to follow an applicable holding of a higher court in the same jurisdiction. Such precedents are also termed authoritative precedent or binding authority.
Such precedent exists within common law jurisdictions that recognize judicially made law. Generally, binding precedents follow the doctrine of stare decisis, which means ‘stand by the decision.' Most states within the U.S. follow a common law system of law as we do here in the UK.'
Now then. This means that there needs to be a decision from a higher court which binds a lower court to follow that decision. And the ratio decendi of superior courts, then applies to those courts when the facts of a case are the same or similar.
There is a 'persuasive' precedent which can assist in the decision making of lower courts but this principle does not bind that lower court and is, as it suggests, merely a persuasive argument.
Taking this back to the SB iPhone, there has to be a 'case' and a judicial made 'court decision' and clearly in this instance, at this point in time there is neither.
'Same or Similar Circumstances' is yet another issue with this case. Even IF Apple were to contest this all the way to the Supreme Court and then lose, this would only BIND compliance for Apple in furniture cases which were close to identical, which is highly unlikely.
Don't forget that in the USA there are local, state & federal structures and this compounds the complexity of Binding Precedent even further as State decisions are unlikely to bind either of the others absolutely.
The failure of the request to open the NYC Phones has failed in the past 10 days and whilst all the Apple supporters point to this as clear proof that Apple is right to fight the FBI, it actually shows that the SB iPhone case can have no influence on other cases which are not 'the same'
'Would the decision at The Supreme Court to uphold the FBI order have an influence on future requests to open iPhones'...
Yes, providing that it was the corporate iPhone of a federal employee who had gone on a killing spree or incredibly similar...I'm hoping that there will never be a 'Same Case' here and opening this phone may help with that.
I hope this helps
Ewen
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Ewen Rankin